On January 5, the 8th circuit ruled that states may not ban "fusion".
"Fusion" is the practice of one candidate being nominated by two different
political parties, so that the candidate is listed on the general election
ballot twice, and voters can vote for him or her under either label. Naturally,
the votes for that candidate on each line are added together, and if that
candidate's total vote is greater than the vote of any opponent, the candidate
is elected. Twin Cities Area New Party, 94-3417MN.

The case was from Minnesota, and the decision is binding not only on that
state, but on Arkansas, Iowa, Missouri, North Dakota, South Dakota and Nebraska.
None of those states currently permits fusion.

The decision was a surprise, because other courts have upheld "fusion" bans.
The case was brought by the New Party, which has never won a constituitonal
party rights or ballot access case before. The 8th circuit noted that "fusion"
was permitted throughout the nation a century ago, and it played a huge role in
the elections of the 1880's and 1890's, when agrarian reform parties frequently
cross-endorsed Democrats in the North, and Republicans in the South. In the 1896
presidential election, the Democratic and Populist Parties both supported
William Jennings Bryan for president, and in most states it was possible for
voters to vote for him either as a Democrat, or as a Populist. Afterwards, most
states banned fusion.

The decision is based on the First Amendment right of political parties to
run their own affairs, and emphasizes that the decision only applies when both
political parties desire that it take place. In this case, the Minnesota
Democratic Party was willing to let one of its legislative candidates, Andy
Dawkins, also be nominated by the New Party.

The vote was 3-0. The decision was written by George Fagg, a Reagan
appointee, and co-signed by Richard Arnold, a Carter appointee, and Harlington
Wood, a Ford appointee. Fagg and Arnold have been favorable to third political
parties in the past. In 1994 Arnold wrote the Forbes decision,
forcing public TV to invite all candidates on the ballot if they hold a debate.

The decision states "Rather than jeopardizing the integrity of the election
system, consensual multiple party nomination may invigorate it by fostering more
competition, participation, and representation in American politics. As James
Madison observed, when the variety and number of political parties increases,
the chance for oppression, factionalism, and nonskeptical acceptance of ideas
decreases. Kirschner, 95 Columbia Law Review at 712 n. 213."

It is likely that Minnesota will ask the U.S. Supreme Court to reverse the
decision; the state has three months to make up its mind.

On December 21, the 2nd circuit vacated the injunction issued earlier by the
U.S. District Court, on the issue of the number of signatures needed for
Republican presidential candidates to get on the New York presidential primary
ballot. The lower court had shrunk them. Rockefeller v Powers, no.
95-9187.

The 2nd circuit hasn't yet issued any explanation for its action. Until it
does so, plaintiffs are unwilling to appeal to the U.S. Supreme Court. The
judges who vacated the lower court injunction are Dennis Jacobs, a Bush
appointee, and two Clinton appointees, Guido Calabresi and Frederick Parker.
None had ever before had a ballot access case.

The only Republican presidential candidates who tried to get on this year's
primary ballot are Bob Dole, who had the help of the Republican Party apparatus;
and Steve Forbes and Pat Buchanan, whose own campaigns did the work. The New
York Republican Party says it will challenge the Forbes and Buchanan petitions.
Since each congressional district is its own unit in New York Republican
presidential primaries, it is likely that Forbes and Buchanan will each end up
on the ballot in some congressional districts, but not all of them (Buchanan
only submitted signatures in half the districts anyway; Forbes tried in every
district).

If the 2nd circuit submits its decision soon, there will be time for
plaintiffs to ask for an order from the U.S. Supreme Court, restoring the
District Court decision; this would increase the number of districts in which
Dole is opposed. In October 1990, the U.S. Supreme Court ordered Cook County,
Illinois, to put the Harold Washington Party on the ballot, less than two weeks
before the election. New York's primary is on March 7.

On December 18, Robert Taft, Ohio Secretary of State, announced that the
Reform Party lacks 2,438 signatures on its party petition. Although more than
33,463 registered voters signed, some of those signatures were allegedly
obtained by circulators who were not registered. The party contests this, and is
trying to reverse the decision.

However, Taft issued a very favorable ruling to cushion the blow: that a new
party has until August 22, 1996 to submit a petition, if it only wishes to be on
for president. Therefore, all the Reform Party must do, to appear on the
November ballot for president, is to obtain 2,438 more valid signatures. This
ruling applies to all new parties.

On January 4, Maine Secretary of State William Diamond said that the Reform
Party had failed to qualify. He said that it submitted 34,921 signatures of
registered members on a petition, but that only 25,050 were valid. Since 25,565
were required, the party fell short by 515.

The reason most signatures were invalidated is this: in Maine, when voters
change party affiliation, the change is not effective for 15 days. Many town
clerks therefore disqualified signers, not because they weren't registered to
vote, not because they weren't registered members of the Reform Party, but
simply because those voters signed the petition within 15 days of changing
parties.

Thus, the largest third party in any state (when parties are measured
by how many registered members they have, as a percentage of the number of
registered voters in the state), is deemed to have too little voter support to
be on the ballot. 3.8% of all voters in Maine are registered members of the
Reform Party; no other third party in any state has registration of even 2%,
except for the Alaska Independence Party, which also has 3.8%. The Conservative
Party of New York, generally thought to be the nation's most powerful third
party, only has registration of 1.6%.

More Bad News

Worse yet for the Reform Party, the alternate candidate procedure in Maine
cannot be used to get the party's presidential candidate on the ballot,
if the party (as planned) doesn't choose its presidential candidate until
mid-July. The deadline for candidate petitions in Maine is June 4, 1996, and
Maine does not permit a stand-in for president (the law specifically authorizes
vice-presidential stand-ins, but bars presidential stand-ins).

The Reform Party is about to file a lawsuit. It may argue: (1) the
disqualification of many signatures was erroneous; (2) the petition deadline is
unconstitutionally early; (3) the law that says no one can sign the petition,
except registered members of the party, is unconstitutional.

A Sneaky Change

The last Ballot
Access News said that the Maine 5% petition to qualify a new party
can be signed by any registered voter, but that the Secretary of State had
arbitrarily ruled that no one but registered members of the new party can sign.
B.A.N. was wrong. It turns out that the Maine law was altered in
1985, with the addition of two words, when the entire election code was
re-codified.

It is likely that most legislators didn't even notice the change.

The old law: "Sec. 323. Petition. After filing the declaration
described in subsection 1, the voter or group of voters may then circulate
petitions. These petitions must be signed in the same manner as primary
petitions under section 445, subsections 3 and 4. The circulator of the petition
must certify his belief that the signatures on it are genuine and that the
signers are registered(**). Each page of the petition must have a caption, in
conspicuous type, which contains the designation of the proposed party followed
by the words 'Petition to participate in the primary election'. The Secretary of
State shall prepare forms for these petitions. The petitions must be filed in
the office of the Secretary of State before 5 p.m. on the 180th day preceding a
primary election and must contain the signatures and legal addresses of voters,
equal in number to at least 5% of the total vote cast in the State for Governor
at the last preceding Gubernatorial election."

The new law: the 1985 bill changed the code number to sec. 303.3 and
added two words: "and enrolled" on the line above, where the double
asterisk (**) is shown (in Maine, as in New York, the term "enrolled" means that
someone has registered into a political party).

This subtle change completely altered the character of the procedure.
Originally the state required a difficult petition, so difficult that it had
never been used since 1976, when it was set at 5%. Now, in 1985, it became a 5%
registration drive, with the added hurdle that all the registered voters
of the party had to sign a petition as well.

The new law was impossible to justify. The old law had never been used, so
why make it more difficult? And why require both a registration drive and then a
petition? If the state felt that 5% registration strength was sufficient to
award a new party a place on the ballot, why make all the signers sign a
completely redundant petition?

The 1985 law, by transforming the petition into a joint registration-petition
procedure, is similar to several other laws which have been declared
unconstitutional by federal courts, in Kentucky (1991), North Carolina (1983),
New Mexico (1988), South Dakota (1984), Nebraska (1984), Florida (1970),
Pennsylvania (1984), Nevada (1986).

Deadline Unconstitutional?

The basis for charging that the deadline is too early is that all three U.S.
Supreme Court decisions on the subject of early deadlines for new parties and
independent candidates have held that such early deadlines are invalid,
especially if they are combined with difficult procedures, and especially if
those procedures are seldom used (as is the case in Maine, where no party
petition has ever succeeded).

No reported decision of any court has ever upheld a petition deadline for new
parties earlier than April of an election year. The Maine deadline is especially
likely to be held too early, because the Maine primary (for office other than
president) is not until mid-June. It is absurd to require a party to submit a
petition six months before the primary election.

Secretary of State Diamond was quoted as saying that the Reform Party failed
because "the process is really designed to take a year". Since the process must
be finished almost a year before any general election, Diamond seems to be
saying that a new party must begin to qualify, two years before an election. It
is shocking that an election official of any state can believe that a law can be
legitimate, which requires a new party to begin to qualify for a place on the
ballot, two years before it may participate in elections (in most
countries, the deadline is two months or less).

The major newspapers of the United States have done a poor job of reporting
the Maine Reform Party story. For example, Richard Berke, writing in the
New York Times of Jan. 7, writes "The fervor for third party or
independent candidates has dissipated. Last week, the Reform Party established
by Ross Perot failed to gather enough signatures to qualify as a party in Maine,
where Mr. Perot has his best showing in the 1992 presidential race." Berke
probably has no idea that the Maine law requires a 5% registration drive.

The national media have referred to the Maine procedure as a petition, when
it is really a registration drive, five times higher than the well-known
California registration requirement. No third party in U.S. history, in any
state, has ever overcome a registration requirement greater than 1% of total
state registration.

On January 5, the U.S. Supreme Court announced that it will hear the
Republican Party's appeal in Colorado Republican Federal Campaign
Committee v Federal Election Commission, no. 95-489. The issue is whether
the First Amendment protects a political party's right to spend money on
political advertising, beyond limits set by the 1974 federal campaign act.

The Republican Party has been hoping to get this issue before the U.S.
Supreme Court, for at least seven years. In this particular case, the Colorado
Republican Party ran radio advertisements, costing $15,000, criticizing a
Democratic U.S. Senator. Since the party had already assigned its spending
authority in federal elections to the national Republican Committee, the FEC
ruled that the Colorado Republican Party had no right to spend any money on
political ads, and fined the party $5,000.

The U.S. District Court had ruled that the FEC action violated the party's
free speech rights, but the U.S. Court of Appeals had reversed.

On January 4, by a vote of 2-1, the Florida Court of Appeals upheld state law
which says that parties with more than 5% of voter registration may receive a
rebate of 53% of filing fees paid by their party's candidates, whereas other
political parties which manage to get on the ballot, may not receive any rebate.
Libertarian Party v Smith, no. 95-547, First District.

The stakes are high, since Florida has the nation's highest filing fees, 7.5%
of the annual salary. The filing fee for U.S. Congress is over $10,000. Since
political parties frequently pay the filing fees of their candidates, in effect
this means that the filing fee paid by the Democratic and Republican Parties for
Congress is less than half that paid by third parties. In addition, of course,
Republicans and Democrats need not petition, whereas third parties must submit a
petition signed by 3% of registered voters of the district.

It is very significant that one judge voted that the law is unconstitutional.
Florida state judges below the State Supreme Court have always been uniformly
hostile toward third party and independent candidates. This is the first time
any Florida state judge, below the level of the State Supreme Court, has ever
voted to find a law relating to third parties or independents unconstitutional.
The Florida Supreme Court has a better record on such issues.

The majority said that the danger to society of factionalism is so great,
that any state preference toward the two old established parties is justified.
This logic is at odds with what the U.S. Supreme Court said in 1995 in
U.S. Term Limits v Thornton. In that case, the U.S. Supreme Court
said that states have no authority to discriminate for or against any class of
candidates, for Congress.

The Florida case happens to concern a candidate for state office, so the
U.S. Term Limits ruling can't be used in this case, but if this
case should be lost, it will always be possible for a third party and one of its
congressional candidates to file a new lawsuit using the U.S. Term
Limits logic.

Last year, California Assemblyman Dominic Cortese changed his registration
from "Democrat" to "Reform", becoming the Reform Party's first state legislator,
and only the fourth [currently-seated] state legislator who is a member of any
third political party.

On January 4, the Assembly recognized the Reform caucus, even though it has
only one member, and gave it $100,000 for its activities. Cynics noted that
Cortese had voted the day before to organize the Assembly under Republican
control.

Generally, legislatures do not recognize caucuses unless they have three
members. The New Hampshire House recognized a Libertarian caucus in 1993, with
four members; but in 1995, when there were only two, recognition was withdrawn.

On January 2, the FEC released matching funds to ten presidential candidates:
Democrats Clinton and LaRouche, Republicans Alexander, Buchanan, Dole, Gramm,
Lugar, Specter and Wilson, and Natural Law Party candidate Hagelin. The AP story
on this event stated that ten candidates were receiving the funds, and then
proceeded to mention eight of them. No mention was made of LaRouche or Hagelin.

1. California: the hearing in federal court in San Francisco in
Democratic Party v Lungren, C94-1703, over state law which makes it
illegal for a party to endorse or oppose a candidate for non-partisan office,
was postponed and now is February 1.

2. Colorado: the Secretary of State still has not ruled on whether
Steve Forbes may gain a place on the Republican presidential primary ballot, but
she has promised a decision by January 12. Colorado law says that no one may be
on the ballot unless that person has qualified for federal matching funds, and
Forbes has not attempted to do so; instead he is raising his own campaign funds.

3. Delaware: on January 5, the Delaware Attorney General ruled that no
exceptions can be made in time deadlines, and therefore Alan Keyes may not
appear on the Republican presidential primary ballot, because his application
was nine minutes past the deadline.

4. Illinois:(See also this update.)
there will be a hearing on February 7 in Libertarian Party of Illinois v
Illinois Board of Elections, no. 95-cv-6456. This is the first lawsuit to
use the U.S. Supreme Court's 1995 U.S. Term Limits case to attack
ballot access laws.

5. Louisiana: On January 4, Republican presidential candidate Morry
Taylor filed a lawsuit to force the Louisiana Republican Party to postpone its
caucus to elect delegates to the national convention. He says the party should
have cleared the Feb. 6 date with the U.S. Justice Department, since Louisiana
is a state which cannot change any election law without pre-clearance.
Taylor v Republican State Central Committee, no. 96-6-P-M1.

6. Michigan: On January 4, Pat Paulsen, a comedian who is running in
Democratic presidential primaries this year, filed a lawsuit to gain a place on
the ballot. Michigan places presidential candidates on the ballot automatically
if they are discussed in news media, and Paulsen says that he is discussed.
Paulsen v Miller, Wayne Circuit Court, #96-600056.

7. Missouri: on December 19, the 8th circuit struck down campaign laws
which limit contributions in some elections to $100. Carver v
Nixon, no. 95-2608. The decision was by John R. Gibson, a Reagan
appointee, and co-signed by Pasco Bowman, a Reagan appointee, and Donald Ross, a
Nixon appointee.

8. New York: there was a hearing on December 21 in Albanese v
Fedearl Election Commission, the case over whether the campaign finance
system in common use for important elections implicitly violates the 14th
amendment. The case was heard by Judges Amalia Kearse, J. Daniel Mahoney and
Frederick Parker.

9. Virginia: on November 22, 1995, the state Attorney General ruled
that a 1994 law is not clearly unconstitutional, even though it seems to
restrict the rights of political parties. Specifically, it puts the decision of
whether the party should nominate by convention or primary (which is usually a
party decision in Virginia) in the hands of an incumbent U.S. Senator who is
running for re-election that year.

The National Standard is a weekly journal of neo-conservative
political opinion. Its Jan. 1 issue says "American politics raises no
significant technical bar against the existence of third parties."

The National Standard is misinformed. Here is a list of some
technical barriers to third parties. Even if a new third party were to arise
which was more popular, and had more voter support, than the Republican and
Democratic Parties, these barriers would exist:

1. Ballot access: a new party formed for the 1994 election would have
needed 3,501,629 valid signatures to run a full slate of candidates for all
federal and state office up that year.

2. Federal campaign finance: a new party could not receive general
election funding for its presidential campaign until after it had first
polled at least 5% for president.

3. Primaries: a new party in some states could not nominate its
candidates with a government-funded primary until it was three years old.

4. Timing of nominations: a new party in some states would be forced
to nominate its candidates months before it knew who the Democratic and
Republican nominees were.

5. Choice of candidates: in some states, a new party would not be free
to nominate candidates for up to two years, if those candidates had recently
been members of an older party.

6. Registration: in some states, voters would not be permitted to
enroll as members of the new party, for as long as three years.

7. Get-out-the-vote drives: in one state, Arizona, the new party could
not have access to information on which voters had voted by noon of election day
(until it outpolled an old major party), even though this is provided free to
the old major parties.

8. Election administration: in some states, and on the FEC, the new
party could not be represented on election boards until it had outpolled one of
the old major parties.

9. Ballot order: in some states, the new party would have an inferior
spot on the ballot until after it had outpolled one of the old major parties.

On January 4, Ralph Nader said he is tentatively willing to be the Green
Party presidential candidate in November 1996, at least in some states. A recent
California poll shows Clinton at 45%, Dole 37%, Nader 11%, other 7%.

The University of Texas had invited leading Republican candidates, and
President Clinton, to attend a meeting at Austin on Jan. 18, which would be on
public TV. Third party candidates were not invited. 600 randomly chosen voters
were to ask questions of the candidates. Now, however, Clinton and most of the
Republicans have said they are too busy to attend.

Green on in Ak, Ca, Me, NM, Or, and has *3,800 in Hi. Prohibition: 100
in Ut. Other nationally-organized parties on: Grassrts in Vt.; New Pty in Wis.;
Soc. in Ore; Wrkrs Wrld in Mi; Prohi. in Tn. "FULL PARTY REQ." is a procedure by
which a new party can qualify before it chooses candidates; not every state has
such a procedure. "Maybe On" in Reform Party column means there is a qualified
party which may join. In some states it is possible to start the full party
procedure now, but not the candidate procedure; for these states, the entry
refers to the more commonly-used method. * -- entry changed since last
issue.

Four states elect their state legislatures in November of odd years. The
results for November 1995:

1. New Jersey: third party and independent candidates for the lower
house of the legislature received 120,376 votes, 4.89% of all the votes cast for
the Assembly in the districts which had third party or independent candidates on
the ballot. The vote for third party and independent candidates in 1995 was the
highest percentage since at least 1933.

(In New Jersey, every voters gets two votes for the Assembly, and parties are
permitted to run two candidates in each district. There are 40 legislative
districts. State Senators were not up in 1995).

The Socialist Workers Party candidates in one Newark district polled 8.31%
and 7.43%, against Democratic and Republican opponents. This is the highest
percentage of the vote the Socialist Workers Party has ever received in the
nation, for state or federal legislative office, in contests in which both major
parties also fielded candidates. The Socialist Workers Party has existed since
1938.

The Conservative Party (which is actually less Conservative than the
Republican Party, and which associated itself with the Reform Party during the
campaign), polled 5.21% of the vote in the districts in which it ran candidates
(when the party ran two candidates in one district, this calculation uses the
candidate in that district with the higher vote). The party was hoping to poll
10% of all the vote cast in all districts, which, under the law, would have made
it the first qualified third party in New Jersey since 1913. However, it needed
274,778 votes for that, and all of its 57 candidates together only polled
97,193.

The U.S. Taxpayers Party polled 4.89% of the vote in the districts which it
contested; the Libertarian Party polled 4.12% of the vote in its districts; the
Socialist Party polled 2.14%; the Natural Law Party 1.70%.

The New Party had qualified four candidates for the ballot for the
legislature, but they withdrew because the party's "star" candidate, Joe
Rakowski, (a former Mayor of Jersey City), running for Essex County Executive,
had withdrawn earlier, and the candidates didn't wish to carry on their
campaigns without him.

2. Mississippi: the U.S. Taxpayers Party and Libertarian Party each
ran one candidate for the State Senate. U.S. Taxpayers: 2.40%; Libertarian
1.67%.

3. Louisiana: there is one qualified third party in this state, the
"Prudence, Action, Results Party", created by Ross Perot's 1992 vote. The party
has never been organized and has almost no members, but a Natural Law Party
activist registered as a member of the Prudence Party and then ran for the State
House under the "Prudence" label. She polled 17.2% in a two-person race. A
Libertarian candidate for the State House polled 1.90% in an 8-candidate race.
He was not permitted to have the word "Libertarian" on the ballot next to his
name, since the party is not qualified in Louisiana.

4. Virginia: Three Green Party legislative candidates polled 3.13% in
the vote in their districts; two Patriot Party candidates polled 14.12% in their
districts; one Libertarian polled .92%.

At a special State Senate election in Washington state, in a three-candidate
race, the Libertarian polled 10.0% and the Patriot Party polled 7.61%.

NOTE: the next B.A.N. will carry registration data for
1995 for all parties, compared to similar data for 1994.